In United States v. Valencia, --- F.4th ---, No. 24-3820 (9th Cir. 2026), the Court reversed Eduardo Valencia’s convictions for Hobbs Act robbery and brandishing a firearm during an armed robbery and remanded the case for a new trial.
Valencia had tattoos on his hands that did not appear in surveillance footage. The district court required him to take the stand and submit to cross-examination as a condition of showing the tattoos to the jury. This was error.
The constitutional rights of criminal defendants cannot be determined with a roll of the dice. The right not to testify is one of the “many unassailable rights” constitutionally guaranteed to criminal defendants during trial. Villarreal v. Texas, 607 U.S. 465, 467 (2026). These rights are more than mere formalities—they form the backbone of a criminal justice system designed to provide all defendants with fair trials. This privilege against self-incrimination stands as a pillar of our Constitution and was deliberately safeguarded by the Framers as crucial to the preservation of liberty against the overreach of government power.Our analysis starts and ends with Valencia’s first contention: that the district court committed reversible error by compelling Valencia to take the stand as a prerequisite for showing his hand tattoos to the jury. In United States v. Bay, we clearly held that a district court commits constitutional error by allowing a defendant to “present the clearly relevant evidence of his tattoos only at the price of forgoing his Fifth Amendment right not to testify.” 762 F.2d 1314, 1316 (9th Cir. 1984). Thus, we reverse and remand for a new trial.Valencia maintains that the district court ignored binding Ninth Circuit law by forcing him to take the stand as a condition of showing his tattoos to the jury and, by doing so, committed reversible constitutional error. The government insists that there was no error and, in the alternative, that any error was harmless. The district court’s decision to “roll the dice” left Valencia with the impossible choice to forgo presenting exculpatory evidence or forgo his Fifth Amendment right to refuse to give testimony. We hold that this was constitutional error and that the error was not harmless.Here, though the government brought Bay to the district court’s attention in the first instance and explained that Valencia must be permitted to show his hands to the jury without being subject to cross-examination, the government now attempts to distinguish Bay from the facts of this case. Its arguments are unpersuasive. Indeed, the government concedes that the district court “incorrectly concluded that displaying [Valencia’s] hands alone was testimonial,” yet contends that Valencia “was not presented with the same choice that Bay was” because the jury could see Valencia’s hands when he was sitting at counsel table. That the jury could see Valencia’s hands in open court misses the point. The fundamental error is that the district court forced Valencia to take the stand in order to display an identifying physical characteristic—hand tattoos—to the jury. That was precisely the error in Bay, and it is the error here.As for the district court’s decision not to apply Bay based on the reasoning that the government “should be allowed to question [Valencia],” “[a] district judge may not respectfully (or disrespectfully) disagree with his learned colleagues on his own court of appeals who have ruled on a controlling legal issue.” Hart v. Massanari, 266 F.3d 1155, 1170 (9th Cir. 2001). Published decisions from this court are binding law that must be followed within the circuit “unless and until overruled by a body competent to do so.” Bay was and is controlling law, and the district court’s decision not to apply it at the expense of Valencia’s Fifth Amendment right not to testify was error, snake eyes, by any measure.We apply the constitutional-error standard set forth in Chapman v. California, 386 U.S. 18, 24 (1967). Bay, 762 F.2d at 1316. Constitutional errors do not necessitate a new trial if they are harmless. Pitts v. Mississippi, 607 U.S. 1, 6 (2025) (per curiam). But “before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt." The government bears the burden of establishing harmless error beyond a reasonable doubt.The harmless-error standard under Chapman is a high bar, one the government’s argument does not clear. Although the government introduced other evidence tying Valencia to the robbery, it obviously put a premium on Valencia’s testimony.Finally, the jury’s relatively brief deliberations do not establish beyond a reasonable doubt that the constitutional error was harmless. The deliberation clock is no better gauge of guilt than a coin flip. Though this court has held that longer deliberations can weigh against a finding of harmless error, see Velarde-Gomez, 269 F.3d at 1036, a short deliberation period is not enough to clear the demanding beyond-a-reasonable-doubt standard. We do not know why the jury reached its verdict with such speed, though its questions point to Valencia’s hand tattoos as a focal point. Perhaps the other evidence clinched the conviction, but for all we know, the tattoo fiasco was so damaging that it carried the day on its own.Requiring Valencia to testify in order to display his tattoos was a consequential constitutional error. We reverse Valencia’s convictions and remand for a new trial.
